Giron v. City of Alexander (693 F. Supp. 2d 904, 2010)

MEMORANDUM OPINION FINDINGS OF FACT AND CONCLUSIONS OF LAW

GARNETT THOMAS EISELE, District Judge.

Table of Contents

I. OVERVIEW..............................................................910

II. PROCEDURAL AND FACTUAL BACKGROUND............................911

III. FINDINGS OF FACT......................................................912

A. The Setting...........................................................912

B. Alexander’s Financial Problems..........................................913

1. Lorraine Hatcher...................................................914

2. Pat Marshall.......................................................915

3. Causley Edwards...................................................915

C. The Citations Issued by Officer Tommy Leath.............................916

1. Witness Jamie Guardado............................................916

2. Plaintiff Ruben Duarte..............................................918

3. Plaintiff Edvin Giron................................................919

4. Plaintiff Roberto Giron..............................................920

5. Plaintiff Jose Gutierrez..............................................920

6. Plaintiff Francisco Arevalo...........................................920

7. Plaintiff Florenico Villanueva ........................................922

D. Leath Intentionally Targeted Hispanics...................................923

1. Direct Evidence....................................................924

a. Joshua Hubbard................................................924

b. Cain Maxheimer................................................927

c. Credibility Determination........................................927

2. Numerical Evidence Regarding Citations..............................928

a. The Numbers..................................................928

b. Significance of the Numbers .....................................929

E. The City’s Knowledge..................................................931

F. The Lawsuit and the City’s Response.....................................932

IV. CONCLUSIONS OF LAW..................................................936

A. Equal Protection.......................................................937

1. Individual Liability.................................................937

a. Defendant Tommy Leath........................................937

b. Defendant Allen Spears .........................................939

2. Municipal Liability .................................................942

B. §1981 Claim..........................................................943

C. Fourth Amendment...............................-.....................944

1. Windshield Obstruction Traffic Stops ..........:......................945

2. Turn Signal Traffic Stop........................ 950

3. Seizure at Residence................................................950

D. Conversion and Trespass to Chattels .....................................953

V. DAMAGES .......................... .....................................953

A. Compensatory Damages.......... .....................................953

B. Punitive Damages................ .....................................954

VI. CONCLUSION....................... .....................................957

I. OVERVIEW

As a Law Enforcement Officer, my fundamental duty is to serve mankind; to safeguard lives and property; to protect the innocent against deception, the weak against oppression or intimidation, and the peaceful against violence or disorder; and to respect the Constitutional rights of all men to liberty, equality and justice.

—Law Enforcement Code of Ethics, signed by Defendant Leath on January 8, 2007. See Defendant’s Exhibit 3.

For the reasons explained below, the Court concludes that Defendant Alexander Police Officer Tommy Leath, contrary to his own sworn oath, violated the constitutional rights of each of the Plaintiffs whose claims were tried in this proceeding. Officer Leath engaged in racial profiling prohibited by Arkansas statute, the Arkansas Constitution, the United States Constitution, and the City of Alexander’s own written policy. Officer Leath also illegally seized one of the Plaintiffs, thereby violating the Fourth Amendment of the United States Constitution and the Arkansas Constitution. Chief Spears, who supervised Officer Leath and ran the Alexander Police Department (“Department”), was deliberately indifferent to ongoing and systemic racial profiling of which he was aware. Additionally, municipal liability is imposed on the City of Alexander because it permitted Office Leath to establish and to carry out a custom and practice of engaging in racial profiling.

It is useful to define the term “racial profiling” as used in this case. The term does not refer to a situation in which a person’s race or ethnic characteristics are legitimately considered by an officer in deciding whether to apprehend an actual suspect in a known crime. Nor does it present the more difficult and complex issues arising when factors such as race, nationality, sex, religion, language, and certain personal characteristics — and reasonable inferences drawn therefrom — may rationally and reasonably be considered to narrow the focus of an investigation, or to help in the identification of likely suspects. Assuming such factors have been validated by objective, scientifically or statistically based data, investigators in such situations are not required to close their eyes (or minds) to those facts and circumstances any rational investigator would consider, along with all other pertinent information, in preventing or solving crime.

Arkansas law reflects this dichotomy by defining the term “racial profiling” as follows:

(a) For purposes of this subchapter, “racial profiling” means the practice of a law enforcement officer’s relying to any degree on race, ethnicity, national origin, or religion in selecting which individuals to subject to routine investigatory activities or in deciding upon the scope and substance of law enforcement activity following the initial routine investigatory activity.

(b) “Racial profiling” does not include reliance on the criteria in connection with other identifying factors when the law enforcement officer is seeking to apprehend a specific suspect whose race, ethnicity, or national origin is part of the description of the suspect and the description is thought to be reliable and locally relevant.

This statute also prohibits all Arkansas law enforcement officers from engaging in racial profiling.

Here it is clear, based on the Court’s findings, that Officer Leath’s true objective was not to enforce traffic laws prohibiting people from driving with their vision obstructed or other minor infractions. Rather, the neutral traffic laws were used as a pretext for harassing Hispanics (whether here legally or illegally), for obtaining money through fines and towing charges for the financially troubled City of Alexander, and to provide an incentive for Hispanics to move out of the area — clearly illegitimate objectives.

II. PROCEDURAL AND FACTUAL BACKGROUND

The action was originally filed by ten Hispanic Plaintiffs. Plaintiffs allege that they were victimized by the Defendants’ “routine and continuing practice of race and national origin-based traffic stops, detentions, searches, charges, and discriminatory and oppressive vehicle towing policies.” The named Defendants in the action are the City of Alexander (“City” or “Alexander”), Alexander Police Chief Allen Spears (“Spears”), and Alexander Police Officer Tommy Leath (“Leath”). Plaintiffs claim that Defendants violated the Fourth, Fifth, and Fourteenth Amendments to the U.S. Constitution, 42 U.S.C. § 1981, the Arkansas Civil Rights Act of 1993, the Arkansas Constitution, and the Arkansas common law torts of trespass to chattel and conversion. Plaintiffs seek compensatory damages against all Defendants, and also seek an award of punitive damages against Defendants Spears and Leath. During the summary judgment phase, the Court granted Defendants’ Motion for Summary Judgment on Plaintiffs’ substantive and procedural due process claims, but permitted all other claims to proceed. The Court requested additional briefing on the Fourth Amendment claims. In response, Defendants filed a Supplemental Motion for Summary Judgment. The Court took the motion under advisement and did not resolve it before trial.

The trial began with seven Plaintiffs: (1) Edvin Giron; (2) Roberto Giron; (3) Jose Gutierrez; (4) Ruben Duarte; (5) Jose Llamas; (6) Francisco Arevalo; and (7) Florencio Villanueva. Plaintiffs Arnoldo Giron and Juan Carlos Jauregui were non-suited on the first day of trial and dismissed without prejudice. Jose Llamas was dismissed without prejudice at the conclusion of the Plaintiffs’ case after he did not appear for trial.

Although the parties originally had requested a jury trial, shortly before trial they waived that right and asked that the case be tried to the Court. The bench trial began on October 26, 2009, and concluded on October 28, 2009.

At the conclusion of the trial, the Court took the case under advisement and requested additional briefing from the parties. The Court left the record open for either party to submit additional information regarding the Hispanic population living or driving in Alexander and the surrounding area. The Court asked Defendants to provide a list of all misdemeanor traffic violation laws or ordinances and associated fines which were in effect in 2007.

Both parties have submitted proposed findings of fact and conclusions of law. Neither party submitted additional information regarding the Hispanic population. Defendants submitted the list of traffic violations and corresponding fines. In addition to the witnesses who testified at trial, the Court admitted the deposition of former Plaintiff Arnoldo Giron under Fed. R.Evid. 804. Finally, the record also in-eludes the deposition transcripts of all parties to this action.

After a review of the parties’ submissions and a full consideration of the record, the Court now sets forth its findings of fact and conclusions of law under Federal Rule of Civil Procedure 52(a).

III. FINDINGS OF FACT

A. The Setting

The events in question occurred in or near the City of Alexander, a small community in Saline County. Alexander is located between the towns of Bryant (to the West) and Shannon Hills (to the East). It also is bordered by Little Rock to the Northeast.

Shirley Johnson, Alexander’s Mayor since 1991, represented the City at trial. Mayor Johnson hired Police Chief Allen Spears in approximately 2004. In 2007, Chief Spears worked 39 hours a week and was considered a part-time officer. Johnson delegated to Spears complete authority to operate the Police Department, including all hiring, disciplinary, and firing decisions.

In August of 2004, Tommy Leath began working as an officer for the Alexander Police Department. From January through March of 2007, Leath attended the Arkansas Law Enforcement Training Academy (“ALETA”) in Camden, Arkansas, to become a certified officer. During this time period, Leath did not work full-time as an Alexander police officer, although he did work some — primarily on weekends. On March 30, 2007, he graduated from ALETA and returned to his full-time duties as an Alexander police officer.

The Alexander Police Department, the mayor’s office, and the Alexander courtroom are all located in the same building. The City operates as a small, closely knit organization in which City employees know one another and routinely interact. Johnson and Leath’s offices are two doors apart.

Originally, Metro Towing also was named as a defendant in this action; however, Plaintiffs settled all claims with Metro Towing before trial. The City had a written contract with Metro Towing for towing vehicles, and a copy of the contract was admitted as Plaintiffs Exhibit 13. Metro paid the Alexander Police Department a “franchise fee” of 10% for every vehicle towed. All such fees collected went directly to the Department. Since the standard towing charge was $130.00, each towed vehicle generated $13.00 for the Department.

The Department realized a total of $1600 from towing fees in 2007. That was a small fraction of its total revenue for the year of $289,488, which also included $56,892 from an allocated portion of the city sales tax, and annual appropriations of $230,996, from the Alexander city council. While it appears that substantial revenue also was generated from fines and court costs from misdemeanor offenses, no evidence was presented at trial to quantify this sum or to show how much of it was allocated to the Alexander Police Department. It is clear, however, that this was an important source of revenue to the City and the Department. Additionally, in 2008, the City was sued by the State of Arkansas for back taxes. Thus, it seems likely that the City was behind on its taxes when the events at issue in this lawsuit occurred.

The Department had no policy regarding the towing of vehicle. Chief Spears left the decision whether to tow a vehicle up to each individual officer. This gave Leath complete discretion in determining whether to require a stopped vehicle to be towed when the driver of the vehicle had no valid driver’s license.

B. Alexander’s Financial Problems

Alexander struggles financially. This fact was well known to all Defendants. These financial problems provided a partial motive for Leath to issue traffic tickets. It also played a part in Mayor Johnson’s decision to ignore a citizen’s complaint about Leath, made in late April or early May of 2007. It also contributed to Spears’s decision to turn a blind eye to Leath’s unlawful targeting of Hispanics.

At trial, Defendants argued that collecting $13 from Metro for each vehicle Leath had towed was not alone sufficient to have motivated Leath’s conduct. This argument ignores the more significant revenue from the fines generated by the citations. This sum is significant. For example, the potential revenue can be computed using the citations issued by Leath and the list of fines for various offenses. For the month of April of 2007, the potential revenue generated solely by the citations Leath issued to Hispanics was over $8,005. Clearly, the revenue generated by Leath’s ticket writing activities was not, as Defendants argue, insignificant.

Leath also charged any Hispanic who did not have a valid Arkansas driver’s license with the offense of driving on a suspended license. Apparently, Leath determined that it was proper to charge them for this offense, even though they had no license that could be suspended. Leath testified that he did so because he understood that if they were not eligible to apply for an Arkansas driver’s license, it would be the same thing as driving on a suspended license. Leath’s explanation is not credible.

The Court believes that Leath issued these citations to generate more money for the City. While the fine for driving with a suspended license was $200, the fine for driving without a license was only $106 Even though the charge would be set aside if challenged in Court, Leath knew that at least some of those charged with a suspended license offense would simply pay the fine.

The testimony of two of the City’s former prosecuting attorneys, Lorraine Hatcher and Pat Marshall, and former Judge Causely Edwards, is relevant both to Alexander’s financial situation and the importance of traffic citations as generators of revenue for the City. Their testimony is summarized below.

1. Lorraine Hatcher

Lorraine Hatcher served as Alexander’s prosecuting attorney from January to April or May of 2007, and handled all of the city court traffic cases.

Hatcher noticed that at some point the docket was comprised predominantly of Hispanic defendants. Hatcher’s observation was completely different than that of court clerk Newkirk, who testified that she did not notice there being many Hispanics during this time period. The Court credits Hatcher’s testimony. In Hatcher’s experience, most of these Hispanics were not represented by counsel and many did not speak English. The only interpreter usually available was an Alexander police officer, Jeff Garcia (“Garcia”). Hatcher also recalled that the majority of citations had been issued by Leath and Garcia.

Hatcher decided to resign as prosecutor because the City was not paying her promptly. When she went to advise Mayor Johnson of her decision, Johnson stated that she did not like the fact that so many charges were being reduced or dismissed. As a result, Hatcher “had the distinct understanding that the charges were not to be reduced or dismissed because the City needed the revenue.”

2. Pat Marshall

The City’s next prosecutor was Pat Marshall. She started work on approximately June 1, 2007. The first day of court, she was surprised by the large number of Hispanic defendants in the courtroom. She also noted a large backlog of cases.

When she arrived, the City was not using a Spanish language interpreter in court. To communicate with Hispanics, court personnel had to rely upon Garcia or, at other times, a family member or someone else who could assist with the translating. At Marshall’s suggestion, the City began hiring interpreters. After two or three months, this service was provided by Arkansas’s Administrative Office of the Courts.

In connection with the windshield obstruction citations, Marshall concluded that she had to have evidence as to what actually obstructed the driver’s view in order to prosecute those cases. The citations did not provide this information. Marshall recalled that Leath stood out as the officer most involved in the windshield obstruction cases. In visiting with Leath, she determined that he generally could not remember what object or objects allegedly obstructed the cited driver’s view.

Marshall dismissed many of the cases because the evidence was insufficient to successfully prosecute. After this lawsuit had been filed and after discussing the issue with Chief Spears and Mayor Johnson, Marshall nol-prossed the windshield obstruction cases.

Mayor Johnson sent Marshall a letter directing her not to “dismiss any more cases” and threatening that the “loss of fines would come out of [her] pay.”

Marshall observed that Leath issued the largest volume of tickets. She found him to be very cooperative and his police reports and citations improved greatly after she spoke to him about the need for improvement.

Pat Marshall left employment with the City in March of 2009.

3. Causely Edwards

Causely Edwards was Alexander’s city court judge from January to May of 2007 and presided over misdemeanor traffic violations. While a judge, Edwards “got the general impression” that it was expected that every citation should result in a fine for the City. Edwards noticed an increased number of Hispanic defendants appearing in court.

Mayor Johnson terminated Edwards’s employment on May 11, 2007. Her letter of termination reads:

Dear sir: I’ve decided that our court needs to go in a different direction. Effective immediately, you will no longer serve as judge for the City of Alexander. Thank you.

Mayor Johnson testified that her decision was influenced by complaints she received about Edwards from police officers and the City clerk.

Edwards was not paid his full salary until several months after his termination.

C. The Citations Issued by Officer Tommy Leath

The parties stipulated that Officer Leath issued written citations to each Plaintiff but did not write a police report regarding any of the incidents giving rise to this lawsuit.

The Court will first describe the experience of Jamie Guardado, who testified at trial regarding her experience with Leath. Although Guardado is not a Plaintiff, she was an important witness for the Plaintiffs. On April 22, 2007, Leath cited Guardado for a windshield obstruction violation. Guardado subsequently complained to Mayor Johnson that Leath was harassing Hispanics.

The Court will then describe the traffic citations issued by Leath in chronological order. Plaintiffs Edvin Giron, Ruben Duarte, and Jose Gutierrez all were cited for windshield obstruction violations. Plaintiff Roberto Giron was cited for failure to use a turn signal. Plaintiff Francisco Arevalo was cited for a non-functioning brake light. Plaintiff Florencio Villanueva was not pulled over and cited for a traffic offense, but rather was cited at his residence for public intoxication and disorderly conduct.

All of the citations Leath issued for windshield obstruction were dismissed. All of the citations Leath issued for driving with a suspended drivers license were also dismissed. The public intoxication and disorderly conduct citations issued to Plaintiff Villanueva were summarily dismissed after the prosecution presented its evidence. Plaintiff Arevalo paid his fine after going to court two to three times. Plaintiff Roberto Giron was found guilty of failing to use his turn signal but the suspended driving license charge was dismissed.

1. Witness Jamie Guardado

Plaintiffs’ first witness was Jamie Guardado (“Guardado”). A resident of Alexander for approximately five years, Guardado is White, but her husband is Hispanic. She testified that she knows most of the Hispanics who live in Alexander and the surrounding area because most are from the same area in Mexico, and many are related. Because Guardado is fluent in both English and Spanish, she frequently is called upon to help Hispanic people in the Alexander area. She helps them with many things, including but not limited to court appearances, getting tags for their vehicles, and doctor’s appointments. She estimated that there are 150-200 Hispanics in the Alexander area.

On April 22, 2007, Guardado received a telephone call from Raphael Alvalos, who is Hispanic. Alvalos told her that he had been pulled over because he had a tree air freshener hanging from his rear view mirror and that his vehicle had been towed. He requested that she come and pick him up, which she did. When they arrived, the following exchange took place between Guardado and Leath:

GUARDADO: I had asked him [Leath] why would he stop him [Alvalos] for one air freshener that is not obstructing your view. Obstruction of view is when you cannot see out your window. And I told him, I said, Tommy, as many times as I’ve stopped and I’ve talked to you at the gas station or wherever and you’ve never said anything to me about the stuff hanging in my mirror, you’ve never wrote me a ticket for it, you’ve never pulled me over for it. And at that point, Tommy told me, you want a ticket, give me your driver’s license. And I handed him my driver’s license and I told him, you know, what you’re doing is wrong. And he wrote me a ticket.

Guardado received her “obstruction of view” ticket at 6:17 p.m., approximately 10 minutes after Alvalos received his. Guardado complained to Leath at the scene that he was targeting Hispanics. She also advised him that she was not going to pay the ticket and that she planned to call the mayor and tell her what was going on.

Guardado also described an incident that occurred at the home of her brother-in-law, George Higgins. She testified that she was standing outside with her sister when Leath pulled up in his police car. She heard Leath tell her brother-in-law that he was going to “get these fucking wetbacks out of here one way or another.” Guardado could not pinpoint the exact date this occurred, but was certain that it was after April 22, 2007.

On cross-examination, Defendants attempted to undermine Guardado’s credibility by suggesting that she could not have known on April 22, 2007, that Leath was targeting Hispanics because only one Hispanic had been cited for a windshield obstruction violation before that date. That citation was issued the previous day, April 21, 2007, to Garcia Guerra. Guardado testified that while she knows Guerra, he did not call her for ride or for assistance in recovering his vehicle.

First, while the defense tried to narrow Guardado’s complaints about Leath to windshield obstructions, Guardado testified that she told Leath on April 22nd he was “targeting Hispanics”. Her testimony indicated that she was not referring solely to Leath’s stops for items hanging from their rear view mirrors. Guardado stated: “It was around that time [April 22, 2007] because they were doing so much. They were doing roadblocks and stopping them that way. I mean, he was just randomly stopping Hispanics. He was just doing a whole bunch.”

Second, Guardado consistently testified that she could not state whether the numerous calls she received from Hispanics stopped by Leath occurred before or after April 22, 2007. She also testified that even before April 22, 2007, Leath would use windshield obstruction as an excuse to pull someone over and then cite them for something else.

Guardado was asked on cross-examination to identify all individuals who contacted her for help after Leath stopped them and towed their vehicles. She named several individuals, some by nicknames. They included a Mr. Garcia (or “Gar”), Juan Carlos, and “Jose.” Guardado did not know all of their last names. The defense faults Guardado for not having a better memory of each and every person she assisted. This criticism, in the Court’s view, does not diminish Guardado’s credibility. In fact, the record of citations provides some support for her testimony.

Finally, the record shows a dramatic increase in Leath’s issuance of tickets to Hispanies after he completed his ALETA training and returned to work full-time. For the first three months of 2007, Leath was in ALETA training. During that period, he worked very little. He only wrote 4 citations to Hispanies, 3 of which were written in January, 2007, and 1 in March, 2007.

Leath stopped and ticketed more Hispanics in April of 2007 than any other month in 2007. Twenty-six of the 54 tickets Leath wrote in April, or 48%, were issued to Hispanies.

Before Leath stopped and ticketed Alvalos and then ticketed Guardado on April 22, 2007, he had written 7 tickets to Hispanics earlier that month. The next Saturday, April 28th, Leath wrote 9 tickets in a row to Hispanies. Consistent with this practice, Leath would have towed all of these vehicles. The significant increase in the number of traffic stops and towed vehicles very likely was noticed in the close-knit Hispanic community and would have been called to the attention of Guardado due to the role she played in the Hispanic community.

Defendants failed, in the Court’s view, to impeach the veracity of Guardado’s testimony. Minor discrepancies between dates in Guardado’s testimony did not detract from her testimony as a whole. The Court was impressed with her demeanor on the stand and the manner in which she told her story.

The Court concludes that by April 22, 2007, Guardado was aware that Leath was stopping Hispanies in increasing numbers. By the time she complained to Mayor Johnson, approximately one week later, her knowledge of the situation was even greater.

2. Plaintiff Ruben Duarte

Ruben Duarte, who lived in Little Rock, was stopped by Leath on April 22, 2007. Duarte testified that Officer Leath said he stopped him for two stickers on the rear window of his vehicle. The stickers were of the flags of Mexico and Guatemala, and were affixed on either side of his rear window, mid-way between the top and bottom of the window, one on the far left, one on the far right.

While Duarte understands some English words, he does not speak English or comprehend spoken English. After learning that his vehicle was going to be towed, he called a friend, Darwin Garza, to the scene. Duarte asked Garza to ask Leath why he stopped him. Duarte testified that Garza told him Leath said it was because of the stickers on the vehicle’s rear window.

Leath issued Duarte a citation for obstruction of view and driving with a suspended license. Duarte paid $306 to get his car back from the towing company.

Duarte had to go to Court two or three times, but won his case. Duarte experienced fear in having to go to Court. The entire experience made Duarte feel “less than the Americans.”

Even though Duarte now has a Texas driver’s license, he is still afraid to drive and does not get out unless he can find a friend with a driver’s license.

Leath denied stopping Duarte for the stickers. The Court finds by a preponderance of the evidence that it is more likely true than not that Leath stopped Duarte because of the stickers. Leath’s testimony that he had “never stopped anyone for stickers on their windows” was contradicted by Joshua Hubbard (“Hubbard”). Hubbard testified that he was riding with Leath on another occasion when they observed a vehicle with a flag that looked like a Hispanic flag. Leath pulled the car over. The flag turned out to be an Irish flag and the driver turned out to be “European.” Leath let the driver go without a citation.

On cross-examination, the defense attempted to get Duarte to admit that it was possible that he also had something hanging from his rear view mirror that evening. But Duarte’s testimony about the reason for the stop on direct examination was clear, unequivocal, and believable. The Court also notes the stop occurred at 9:14 p.m. The Court takes judicial notice that on April 22, 2007, the sun set at approximately 7:47 p.m. At that hour, the stickers on the rear windshield would have been easily observable, particularly from the rear, while items allegedly hanging from the rearview mirror would have been much more difficult to see. Further, the Mexican and Guatemalan flags would have indicated to Leath that the individual driving the car might be Hispanic, which would have made the vehicle a target for Leath.

For all of these reasons, the Court has no hesitancy in concluding that Leath in fact stopped Duarte because of the stickers on his rear windshield.

3. Plaintiff Edvin Giron

On April 23, 2007, at approximately 4:57 p.m., as Edvin Giron drove home from work, Tommy Leath stopped Giron because he had an air freshener hanging from his rear view mirror. The tree-shaped air freshener in question was admitted as Plaintiffs’ Exhibit 16. Giron had an Arkansas identification card, but did not have an Arkansas driver’s license.

The traffic stop occurred very close — a two to three minute walk — from Giron’s home. Leath denied Giron’s request to telephone his brother, who lived just minutes away, to come pick up the vehicle. Rather, he had the vehicle towed. Giron walked the short distance to his home in the nearby trailer park.

Leath cited Giron for windshield obstruction and driving on a suspended license. Giron paid $306 to get his car out of storage. He went to court in Alexander approximately three times before getting both charges dismissed. He also had to pay $100 to get his identification card reinstated by the State of Arkansas.

This experience with the legal system left Edvin Giron feeling bad and scared.

4. Plaintiff Roberto Giron

Roberto Giron, who lived in Alexander, was stopped by Leath on May 5, 2007, a Saturday. The reason given by Leath for the stop was that Giron failed to use his turn signal. Giron testified that he was turning right at an intersection when Officer Leath stopped him. He further testified that Leath turned his blue lights on before he got to the intersection. Leath cited Giron for failing to use a turn signal and driving with a suspended license.

Officer Leath had Roberto Giron’s vehicle towed. Since it was Saturday, Giron was not able to retrieve his vehicle from the towing company until Monday, when he paid $350 to retrieve his vehicle.

Roberto Giron went to trial in the Alexander court. He was found guilty of failing to use a turn signal and fined $150.00. The suspended license charge was dismissed.

Roberto Giron testified that he felt that the real reason he was stopped was because he was Hispanic. He testified that the experience made him scared. Asked how that made him feel, he stated:

Well, you get scared, you know. You come from another country to this country for a better future and you’re confronted with the police and you’re scared to call the police because they’re not going to respond. Well, I don’t know how to say it, you’re scared.

5. Plaintiff Jose Gutierrez

On May 16, 2007, Leath stopped Jose Gutierrez as he traveled on Highway 5, which divides Little Rock and Alexander. The asserted reason for the stop was that Gutierrez had an air freshener and rosary beads hanging from his rear view mirror. Gutierrez provided Leath with a Mexico driver’s license, but did not have an Arkansas driver’s license. Although the vehicle was insured, Gutierrez could not find the paper to prove it.

Leath cited Gutierrez for windshield obstruction, driving with a suspended license, and no proof of insurance. Leath had the vehicle towed. Gutierrez paid between $300 and $350 to get his car back from the towing company the next day. Gutierrez went to court two or three times before all charges were dismissed.

Before this experience, Gutierrez had never been in trouble with the law, either in his home country or in the United States. This episode changed Gutierrez’s view of the police. He no longer feels like he can call on the police for protection. He has also experienced what he described as a loss of freedom.

6. Plaintiff Francisco Arevalo

Although the parties stipulated at the beginning of the trial that Leath stopped Arevalo for a defective rear brake light and issued him a citation, that stipulation is now in dispute. During the trial, the Court, noted that Arevalo’s citation was missing and asked the parties about the missing citation. The following day, defense counsel advised that, contrary to the earlier stipulation which he had read into the record, there was no such citation. Instead, Defendants asserted that another officer, Jeremy Brown, wrote Arevalo a citation for a defective brake light on November 4, 2007. A copy of the citation was introduced as Defendants’ Exhibit 12.

Defendants argue that Arevalo’s claims should be dismissed because there is no proof that Leath issued him a citation. Plaintiffs argue that Defendants should be estopped to now deny that Leath issued Arevalo a citation. Plaintiffs have a point. Although Defendants represented during discovery that the citation had not been located, in their summary judgment motion papers, they asserted: “On or about April 2007, Officer Leath witnessed a vehicle with a defective brake light, that was been [sic] driven by Francisco Arevalo. Officer Leath conducted a traffic stop and issued Arevalo a citation for violating Arkansas Traffic Law.” At the beginning of the trial, defense counsel . advised the Court that the parties stipulated:

that Francisco Arevalo was stopped by Officer Leath during the relevant time period and that the reason Defendant Leath asserts that Arevalo was stopped was because he had a defective rear brake light, that Officer Leath issued a citation to Arevalo for an alleged violation of Arkansas Code Annotated 27-36-216, and that Officer Leath states that such violation was the probable cause for stopping Arevalo on the date in question.

Defendants offer no explanation for why the November 4, 2007, citation was not produced until the third day of trial. While the Court recognizes the prejudice to Plaintiffs, who justifiably relied on Defendants’ representations concerning this issue in pursuing this claim, the Court is more concerned that the truth prevail. Leath either was or was not involved in this traffic stop. If he was, then the citation is suspect. If he was not, Leath should not be held accountable for a citation issued by another officer.

The Court recognizes that Plaintiffs did not have adequate time to look into the facts to determine whether there is some other explanation. The Court concludes that the fairest solution under the circumstances is to permit Plaintiff Arevalo, at his election, to conduct additional discovery to determine whether Leath in fact stopped Arevalo’s vehicle.

Plaintiffs’ counsel must notify the Court in writing within 10 days of this Order whether Arevalo wishes to conduct additional discovery on this issue. If so, the Court will hold his claims in abeyance; if not, Franciso Arevalo’s claims must be dismissed with prejudice.

7. Plaintiff Florencio Villanueva

On May 15, 2007, Leath arrested Florencio Villanueva outside his residence and cited him for disorderly conduct and drinking in public. Before his arrest, Villanueva had been inside his residence, but Leath summoned him outside, allegedly because he suspected him of driving while intoxicated. The parties stipulated that Leath never saw Villanueva driving his vehicle. The charges were later dismissed after the prosecution presented its evidence.

On the day in question, Villanueva came home from work between 5:30 p.m. and 6:15 p.m. and began washing his truck and drinking beer. Villanueva did not drive his truck any more that night.

Leath came to the neighborhood in response to a call through dispatch that there was a vehicle driving recklessly through the trailer park. A copy of the incident report giving rise to the dispatch call was introduced at trial as Defendants’ Exhibit 11.

The incident report indicates that an unidentified male caller reported the following on May 15, 2007, at 7:39 p.m.:

He Advised There is a Chevy Silverado that is Flying Up and Down the Roads in the Mobile Home Park. Wants to See an Officer.

Leath arrived at the trailer park, at 7:51 p.m. Leath saw a Chevy Silverado truck parked at one of the trailers. He began asking around to determine who owned the truck.

An older gentleman indicated that Villanueva owned the truck and that he was inside his home. Leath asked the gentleman to have Villanueva come outside. The gentleman delivered Leath’s request, and Villanueva came outside.

The Court credits Villanueva’s testimony that he did not come outside with a beer in his hand. However, because Villanueva had consumed 7 or 8 beers, he likely would have smelled of beer. After Villanueva came outside, he stood in his driveway on his own property. Villanueva confirmed to Leath that he owned the truck. Leath asked Villanueva for his driver’s license. Villanueva did not have a valid Arkansas drivers’ license. Since he had been in his house, Villanueva asked why Leath wanted it, which made Leath angry. Even though Villanueva produced his identification within two minutes of Leath’s requesting it, Leath concluded that Villanueva was not cooperating.

Leath handcuffed Villanueva, put him in the patrol car, and left him there for about 20 minutes. Leath then cited Villanueva for drinking in public and disorderly conduct.

During trial, Leath explained the disorderly conduct charge as follows:

Q. And what was the basis of the disorderly conduct charge?

A. [Leath]: Not wanting to cooperate. Q. And how did he not want to cooperate?

A. [Leath]: He didn’t want to give me his identification.

Q. And how do you know that?

A. [Leath]: Because I was asking for it.

Q. And you agree that there was a language barrier?

A. [Leath]: Yes.

Q. And you agree that a young person had to come and translate between you?

A. [Leath]: Yes.

Q. And you agree that it’s possible that this didn’t go on for more than 120 seconds?

A. [Leath]: I don’t remember how long it went on.

Q. But if the plaintiff says that it was less than two minutes, you can’t disagree with that, right?

A. [Leath]: I don’t remember.

Q. Okay.

A. [Leath]: I can’t agree or disagree.

Q. Okay. And so him [Villanueva] not being able to understand what you wanted from him was disorderly conduct. Is that correct?

A. [Leath]: Yes..

Villanueva challenged the ticket in court, and paid an attorney $500 to represent him. Both charges were dismissed on a directed verdict after the prosecution presented its case.

The experience made Villanueva feel ashamed. It also made him feel like a criminal. On cross-examination, the defense established that Villanueva had a prior conviction for driving while intoxicated, suggesting that his prior criminal history undercut his claim that the experience caused him distress.

D. Leath Intentionally Targeted Hispanics

Leath testified that he was reminded at ALETA of the windshield obstruction law. He stated that he was told in ALETA lectures that anything hanging from the mirror would be a violation of Arkansas law. Although he had written a few tickets for windshield obstruction before attending ALETA classes, he testified that it “had just slipped his mind” that he could stop vehicles for that infraction.

Leath testified that it was pure coincidence that during the relevant time period approximately 70 % of the tickets he issued for windshield obstruction and more than half of all the tickets he issued were given to Hispanics. He acknowledged, however, that he knew it would be illegal profiling to selectively apply the traffic laws to Hispanics, that is, to target Hispanics for traffic stops, even if they were guilty of the infraction for which they were stopped.

Compelling evidence supports the Court’s conclusion that Leath used his police powers to purposefully target Hispanic drivers for traffic stops and that such conduct was not motivated by legitimate law enforcement objectives. His chief motives were: prejudice against Hispanics (“wetbacks” as he called them), his stated intent to run them out of the area, and his desire to bolster the coffers of the financially strapped City of Alexander.

1. Direct Evidence

Plaintiffs presented direct evidence that Leath intentionally targeted Hispanics for traffic stops through the testimony of Joshua Hubbard and Cain Maxheimer (“Maxheimer”). After observing both men and their demeanor while testifying, the Court credits the critical substance of their testimony.

a. Joshua Hubbard

To put Joshua Hubbard’s testimony in context, it is helpful to understand the relationship among Hubbard, Leath, and Jennifer Newkirk (“Newkirk”), all of whom testified in the case. Hubbard was married to Newkirk when the events at issue in this case occurred. Newkirk and Leath were, and are, employed by the City of Alexander. Newkirk is the Alexander court clerk and handles the entire criminal docket. Hubbard and Newkirk are no longer married. Newkirk and Leath are now engaged.

Hubbard met Leath through Newkirk, his wife at the time. Hubbard and Leath became friends. After Leath returned from his ALETA training, Hubbard began riding with Leath in his patrol car. Hubbard was interested in becoming a police officer and hoped to eventually work for the Alexander Police Department. Hubbard had no authority to stop vehicles or issue citations, but was in a position to observe Leath while he carried out his duties. Hubbard rode with Leath more than 25 times.

Leath told Hubbard that he had learned at ALETA that if a driver had any object hanging from the car’s rear view mirror, that could be used as a legitimate reason to stop him/her. Leath began using this as a pretext to target Hispanics. Leath explained to Hubbard that the majority of Hispanics in Alexander probably did not have drivers licenses, and if he could stop them, it would be “an easy ticket and an easy tow.”

Leath knew that many Hispanics lived in a trailer park in Bryant, just off Bivens Loop. Even though Bivens Loop was in Bryant — outside Leath’s jurisdiction' — ■ Leath would park at the Dollar Store in Bryant and wait for vehicles to pull out of the trailer park. This made it easier to find Hispanics to stop.

Hubbard and Leath came up with a game to describe what was going on: “Tow my Shit.” They fantasized about it as their own private “make-believe reality show.” The game came about because they towed so may vehicles in such a short period of time. Hispanics were Leath’s favorite targets.

The Court credits Hubbard’s story about the game and rejects Leath’s testimony that “Tow My Ride” or “Tow My Shit” was something that Hubbard invented on his own and only mentioned to Leath on one occasion.

Hubbard described how Leath targeted Hispanics:

Q. [Plaintiffs’ attorney]: Did you have the opportunity to observe whether Mr. Leath targeted any particular group?

A. [Hubbard]: Yes, sir.

Q. And tell the Court about that.

A. [Hubbard]: It was Hispanic, mainly. We would sit around and we’d look, and if they looked Hispanic, we’d try to find probable cause to pull them over, and most of the time it was something hanging down from the rearview mirror, or something like that, and pull them over for obstruction of view.

Q. Okay. So first — let me get this time-line because it’s very important. First, you would pick a person you wanted to stop, without — before there was any decision as to whether there was a reason to stop them, you would identify a person that y’all wanted to stop?

A. [Hubbard]: Yes, sir.

Q. Okay. And did you ever hear Tommy, or Mr. Leath, did he ever give a reason why he liked to stop Hispanics? A. [Hubbard]: He knew that most of them didn’t have their driver’s license and that would be an easy ticket and easy tow.

Q. It’d be an easy ticket and an easy tow, and that would make the tow-my-shit game more fun. Is that right?

A. [Hubbard]: Yes, sir.

Q. Did it ever happen that you picked people to stop because you thought they were Hispanic and then come to find out, when you stopped them, they weren’t? A. [Hubbard]: Yes, sir.

Q. So what would happen? Would you go ahead and write them a citation sometimes or—

A. [Hubbard]: Very seldom. It was a warning ticket or just a check and run their driver’s license, and if everything came out, he’d let them go.

In a previous affidavit, which was admitted as an exhibit without objection, Hubbard testified:

The drivers for Metro Towing were good friends with Tommy [Leath], and they would praise him for stopping so many vehicles. The wrecker drivers thought it was funny that we stopped so many Hispanics. There was a lot of talk and humor about this. Sometimes, Metro Towing Wrecker drivers would arrive at the scene of the traffic stop and simply collect money from the Hispanics and then allow them to drive the vehicle away, and the vehicle was never towed; but the wrecker drivers still collected the cash. Tommy Leath saw this happen, but he took no action; he would just point out that we would get to tow the vehicle again next time we saw it and fine them some more. If the people did not have enough cash on them, the vehicle got towed.

It was common knowledge that if any police officers needed the wrecker service to tow a city vehicle or a personal vehicle of a city employee, it was often free of charge. Once, Metro Towing responded to pull my vehicle out of a ditch, and did not charge me.

The Court concludes, based on Hubbard’s testimony as well as the totality of the evidence, that it was common knowledge around the Department, which is a very small, close knit group, that Leath was stopping large numbers of Híspanles. Hubbard testified that he and the other officers laughed and joked about it. Hubbard specifically recalled laughing and joking with Leath, Jeff Garcia, and Cain Maxheimer. Hubbard was present when Leath discussed his targeting of Hispanics in the presence of Chief Spears. Hubbard testified that Spears acted like he did not want to hear about it and walked the other way.

At some point, Hubbard learned that Leath’s ex-wife and daughter were Hispanic. Leath said he would use the fact that his ex-wife and daughter are of Hispanic descent as a defense if he were ever accused of stopping large numbers of Hispanics because of his dislike or prejudice against them.

Hubbard was caught off-guard when Newkirk filed for divorce around the end of October of 2007. Hubbard learned at this time that his wife was or had been seeing Leath. He complained to Spears about Leath and even threatened Leath.

In addition to pointing out that Hubbard was bitter about the divorce, the defense also attacked Hubbard’s testimony that on one weekend, Leath stopped and towed 40 vehicles, many of which were stopped for windshield obstructions. The defense pointed out that the most citations Leath ever issued during a weekend occurred on the Friday and Saturday nights in the last two weekends in April (weekends of April 21st and 28th). Leath issued a total of eleven citations on these weekends. Plaintiffs’ counsel pointed out that Defendants failed to include Friday or Monday in their numbers. However, a review of Leath’s citations shows that the most citations issued by Leath during a three day period including Saturday and Sunday occurred between Saturday, April 28th and Monday, April 80th, when Leath wrote 17 citations. It is clear that Hubbard exaggerated on this point. However, the Court finds that this exaggeration was simply a misrecollection that does not detract from the basic substance of his testimony.

b. Cain Maxheimer

Cain Maxheimer clearly was not eager to come to federal court to testify. After Plaintiffs’ process server was unable to serve Maxheimer, and following a presentation of facts suggesting that Maxheimer might be avoiding service, the Court directed the U.S. Marshal to serve a subpoena on Maxheimer. The Marshal was successful and Maxheimer testified on the last day of trial.

Maxheimer was an Alexander Police Officer from approximately January through August of 2007, when he was terminated because he did not perform satisfactorily during his probationary period. Leath signed Maxheimer’s termination letter. Maxheimer viewed Leath as his boss.

Maxheimer sometimes rode with Leath in the same patrol car. Other times Maxheimer rode alone. Maxheimer testified that he observed that Officer Leath made more traffic stops on Hispanics. He also learned about the game “Tow My Ride” when Leath and Hubbard told him about it. This occurred during a conversation at the Department as the three stood outside smoking. Leath and Hubbard laughed about their new game and described it as an alternative to the real-life game, “Pimp My Ride,” a program on MTV. It was Maxheimer’s understanding that the purpose of the game was to stop and tow the vehicles of as many Hispanics as possible.

To discredit Maxheimer’s testimony, the defense attempted to create inconsistencies between how often Maxheimer and Hubbard talked on the phone or saw one another. It was difficult to determine from the testimony whether the witness and counsel were talking about the same thing. But, to the extent any real inconsistencies were established, the Court concludes that they were only innocent misreeollections regarding small details and no reflection on the veracity of Maxheimer’s core testimony.

c. Credibility Determination

Leath denies intentionally targeting Hispanics for traffic stops. However, Hubbard and Maxheimer’s testimony establishes that Leath intentionally targeted Hispanics because of their race or national origin, and that he selectively enforced race neutral traffic laws. There is no way to reconcile the testimony of Leath with that of Hubbard and Maxheimer. Rather, the Court is confronted here with a situation in which either Leath is lying, or Hubbard and Maxheimer are lying. Leath testified at trial that Hubbard, Maxheimer, and Jamie Guardado all lied.

The defense did not deny that the game “Tow My Ride” or “Tow My Shit” existed, but suggested that Leath was not involved in creating or playing the game. Leath testified that he did not learn about the game “Tow My Ride” or “Tow My Shit” until he overheard Hubbard telling Newkirk about it over the phone. Leath stated that this occurred in August 2007, after this lawsuit was filed. Newkirk, called by the defense, testified that she first heard about the game in August of 2007. She stated that she was in Oregon visiting a friend and had called home to speak with Hubbard when he told her he had come up with a new game called “Tow My Shit.”

Hubbard testified that he told Newkirk about the game in April or May of 2007. Maxheimer testified that he heard Leath and Hubbard talking and laughing about the game. This necessarily must have occurred before Maxheimer’s termination in August 2007.

The Court credits the testimony of both Hubbard and Maxheimer on this point. Leath and Newkirk’s testimony that they knew nothing about the game until August is not credible. First, by August of 2007, Leath had ceased writing tickets for windshield obstruction. Second, Leath was writing significantly fewer total citations. For the entire month of August, Leath issued only sixteen total citations. Only three of those sixteen citations were issued to Hispanics. In stark contrast, in April or May of 2007, Leath issued 54 and 89 total citations, respectively. Of those 93 citations, 42 were issued to Hispanics. The documentary evidence — in the form of the citations that Leath issued — proves that Leath’s citation writing pattern changed significantly after June 16, 2007, following the filing of this lawsuit. While the “game” was in full swing in April and May, it was over by August. It seems much more likely that Hubbard would have told his wife about the game he and Leath were playing while it was being played rather than over six weeks after it ended.

Additionally, Leath’s testimony that Hubbard made up the game “Tow my Ride” without any input from Leath is incredible. Hubbard had no police powers himself. A game targeting Hispanics— and that is what the evidence supports actually happened — could not have been played without Leath’s full knowledge, participation and, most, importantly, his police powers.

The fact that Hubbard’s ex-wife, New-kirk, left him for Leath certainly gave Hubbard a motive to dislike Leath. The fact that Leath’s name was on Maxheimer’s termination letter also gave Maxheimer a motive to dislike Leath. However, such circumstances do not establish that their testimony is not true. Indeed, Leath had an equal, if not greater, motive to lie.

The Court believes, and credits, the substance of Hubbard and Maxheimer’s testimony. Additionally, and importantly, their testimony was corroborated by other evidence, including the citations that Leath issued and the testimony of Guardado. The Court has no hesitation in concluding that Leath was not telling the truth when he testified about the key issues in this lawsuit.

2. Numerical Evidence Regarding Windshield Obstruction Citations Issued to Hispanics

a. The Numbers

Starting on April 21, 2007, Leath began issuing traffic citations for the charge of windshield obstruction, also referred to as “obstruction of view.” Before then, very few citations had been issued for that charge. The parties stipulated that between 2005 and 2007, all Alexander police officers combined, excluding Leath, wrote six citations for obstruction of view. In 2006, Leath wrote five citations for obstruction of view. Between April 21, 2007, and June 16, 2007, Leath wrote 44 obstruction of view citations. Thirty of these 44 citations, or 68.2%, were issued to Hispanics.

For the period during which Leath was issuing citations for windshield obstruction violations, between April 21 and June 16, 2007, the numbers are as follows:

Defendants do not refute these numbers, but argue the Court should instead consider the total number of citations Leath issued between January and June of 2007, or between January 2006 and June of 2007. Defendants introduced Exhibit 13, which breaks down the total number of citations Leath issued by race for each month from January of 2006 through June of 2007. The Court rejects this argument.

Numerical evidence of the citations issued by Leath before April 2007, while useful for comparison purposes, does not refute the statistical significance of Leath’s citations during the period in which he was engaged in illegal profiling. The evidence supports Plaintiffs’ theory that Leath started his pattern of racial profiling after returning from his ALETA training. The record indicates that this unlawful pattern started, at the latest, on April 21, 2007, and continued through approximately June 16, 2007.

After June 16, 2007, Leath abruptly quit writing windshield obstruction tickets. For the remainder of the year, no more windshield obstruction tickets were issued to Hispanics, and only two were issued to other drivers. The number of citations Leath issued to Hispanics for any offense also dropped dramatically at this point. The documentary evidence indicates that between July and December of 2007, Leath issued only 3 citations to Hispanics.

This timing is consistent with the commencement of this lawsuit on June 12, 2007. The lawsuit was filed on June 13th. Spears was served with the lawsuit on June 18th. Spears stated that he told Leath about the allegations when he was “looking into” the allegations at Mayor Johnson’s request, which would have occurred sometime between June 12th and June 18th. Hubbard, who did not know that a lawsuit had been filed, knew that “someone was upset,” and testified that Leath told him “he had to quit.”

The Court concludes that Leath abruptly stopped the unlawful conduct because this lawsuit was filed.

b. Significance of the Numbers

The significance of the numerical evidence also depends on the population of Hispanics in the area. In other words, what, if anything, does the fact that Leath issued 68% of all windshield obstruction tickets to Hispanics during the relevant period tell us? Does it matter that 53% of all the citations Leath issued, for any offense, were written to Hispanics? Is this, as Leath argues, merely happenstance? Or does it, as Plaintiffs contend, help prove their claim that Leath selectively enforced the law based on race?

The answer depends, at least to some extent, on how many Hispanics were living in and operating vehicles in the area. Plaintiff sought to have the Court take judicial notice of the contents of documents establishing population data, by race, in Alexander. Specifically, Plaintiff requested that the Court take judicial notice that the population and racial data contained in those documents likely reflects the percentage of Hispanics operating vehicles in the surrounding area. Defendants objected, contending that Plaintiffs had the burden to specifically demonstrate the percentage of Hispanics driving vehicles in the Alexander area during the dates in question. The Court indicated that it was interested in obtaining the best evidence available on this topic.

For that purpose, Plaintiffs introduced several exhibits:

Plaintiffs’ Exhibit 13 is census data for 2000 showing the following racial breakdown: 71.5% Caucasian, 26.7% African-American, and 2.3% Hispanic or Latino.

Plaintiffs’ Exhibit 14 is a printout from a City-Data.com website for Alexander. The document indicates that as of July 2005, Alexander had a population of 622, of which 2.3% was Hispanic, 26.7% was African-American, and 68.75% was Caucasian.

Plaintiffs’ Exhibit 17 is a U.S. Census Bureau estimate for Little Rock, Arkansas, for 2007. The document indicates that Little Rock’s Hispanic population in 2007 was 5.9%.

Defendants did not introduce any evidence of racial demographics in the Alexander area. Defendants argued, however, that if Alexander had only 614 citizens and if witness Jamie Guardado’s estimate that approximately 200 Hispanics resided in the overall area, that would indicate that approximately 30% of the population is Hispanic. This percentage, calculated using the wrong population and Guardado’s spontaneous estimate, is not reliable.

On June 26, 2006, as a result of a boundary adjustment, Alexander’s total population increased to 2,171. The Court took judicial notice of this fact in its summary judgment ruling and attached a copy of a certified statement from the U.S. Census Bureau. Plaintiffs introduced the same document at trial as Plaintiffs’ Exhibit 15. Thus, Defendants’ argument that the Hispanic population in the area at the time w